The Right to Vote

Chief Justice of the Supreme Court John Roberts speaks at the Indiana University School of Law in Indianapolis, Wednesday, April 7, 2010. (AP Photo/Michael Conroy)
National Journal
Norm Ornstein
Oct. 30, 2013, 3:55 p.m.

It is be­com­ing in­creas­ingly ob­vi­ous that the Su­preme Court de­cision in Shelby County v. Hold­er, which evis­cer­ated the Vot­ing Rights Act, is lead­ing to a new era of voter sup­pres­sion that par­al­lels the pre-1960s era — this time af­fect­ing not just Afric­an-Amer­ic­ans but also His­pan­ic-Amer­ic­ans, wo­men, and stu­dents, among oth­ers.

The reas­on­ing em­ployed by Chief Justice John Roberts in Shelby County — that Sec­tion 5 of the act was such a spec­tac­u­lar suc­cess that it is no longer ne­ces­sary — was the equi­val­ent of tak­ing down speed cam­er­as and traffic lights and re­mov­ing speed lim­its from a dan­ger­ous in­ter­sec­tion be­cause they had com­bined to re­duce ac­ci­dents and traffic deaths.

In North Car­o­lina, a post-Shelby County law not only in­cludes one of the most re­strict­ive and pun­it­ive vote-ID laws any­where but also re­stricts early vot­ing, elim­in­ates same-day vot­ing re­gis­tra­tion, ends pre-re­gis­tra­tion for 16- and 17-year-olds, and bans many pro­vi­sion­al bal­lots. Whatever flimsy voter-fraud ex­cuse ex­ists for re­quir­ing voter ID dis­ap­pears when it comes to these oth­er obstacles to vot­ing.

In Texas, the law could re­quire voters to travel as much as 250 miles to ob­tain an ac­cept­able voter ID — and it al­lows a con­cealed-weapon per­mit, but not a stu­dent ID, as proof of iden­tity for vot­ing. Moreover, the law and the reg­u­la­tions to im­ple­ment it, we are now learn­ing, will cre­ate huge im­ped­i­ments for wo­men who have mar­ried or di­vorced and have voter IDs and driver’s li­censes that re­flect maid­en or mar­ried names that do not ex­actly match. It raises sim­il­ar prob­lems for Mex­ic­an-Amer­ic­ans who use com­bin­a­tions of moth­ers’ and fath­ers’ names.

In a re­cent elec­tion on con­sti­tu­tion­al is­sues, a fe­male Texas Dis­trict Court judge, Sandra Watts, who has voted for 49 years in the state, was chal­lenged in the same court­house where she presides; to over­come the chal­lenge, she will have to jump through hoops and pos­sibly pay for a copy of her mar­riage li­cense, an ef­fect­ive poll tax on wo­men.

The Justice De­part­ment is chal­len­ging both laws, but through a much more cum­ber­some and rarely suc­cess­ful pro­vi­sion of the Vot­ing Rights Act that is still in force. It can­not pre­vent these laws and oth­ers im­ple­men­ted by state and loc­al jur­is­dic­tions, many of which will take ef­fect be­low the radar and will not be chal­lenged be­cause of the ex­pense and dif­fi­culty of lit­ig­a­tion.

Voter sup­pres­sion is noth­ing new in Amer­ica, as the pre-civil-rights era un­der­scores. But it is pro­foundly un-Amer­ic­an. The Texas law, pro­moted ag­gress­ively by state At­tor­ney Gen­er­al Greg Ab­bott, the GOP choice for gov­ernor in next year’s elec­tion, es­tab­lishes the kinds of obstacles and im­ped­i­ments to vot­ing that are more akin to Vladi­mir Putin’s Rus­sia than to the United States. Maybe we should change the state’s name to Putinexas.

Look­ing at the demo­graph­ics in Texas, the Re­pub­lic­an au­thors of the law de­cided that sup­press­ing votes was easi­er than chan­ging either policies or ap­proaches to ap­peal to the emer­ging ele­ments of the state’s elect­or­ate. In Vir­gin­ia, with polls show­ing that Demo­crat­ic gubernat­ori­al can­did­ate Terry McAul­iffe’s ro­bust lead over Re­pub­lic­an op­pon­ent Ken Cuc­cinelli is driv­en by a huge gender gap, it is not sur­pris­ing that Re­pub­lic­ans in Texas are try­ing to sup­press the votes of wo­men as much as those of His­pan­ic-Amer­ic­ans.

A new Vot­ing Rights Act would help to ameli­or­ate some of these prob­lems, es­pe­cially if it ap­plied na­tion­wide (many of the re­strict­ive laws are oc­cur­ring in non-South­ern states such as In­di­ana and Kan­sas). I have pre­vi­ously sug­ges­ted a host of areas that could be in­cluded in a VRA 2.0 to make vot­ing easi­er and more con­veni­ent. But des­pite the en­dorse­ment of a new VRA by in­flu­en­tial Re­pub­lic­ans such as Rep. Jim Sensen­bren­ner of Wis­con­sin, the odds of en­act­ing new vot­ing-rights le­gis­la­tion in today’s thor­oughly dys­func­tion­al and hy­per­par­tis­an Con­gress are slim.

The ef­fort should be ac­cel­er­ated. We need a mod­ern­ized voter-re­gis­tra­tion sys­tem, week­end elec­tions, and a host of oth­er prac­tices to make vot­ing easi­er. But we also need to fo­cus on an even more au­da­cious and broad­er ef­fort — a con­sti­tu­tion­al amend­ment pro­tect­ing the right to vote.

Many, if not most, Amer­ic­ans are un­aware that the Con­sti­tu­tion con­tains no ex­pli­cit right to vote. To be sure, such a right is im­pli­cit in the 15th, 19th, and 26th amend­ments that deal with vot­ing dis­crim­in­a­tion based on race, gender, and age. But the lack of an ex­pli­cit right opens the door to the courts’ rat­i­fy­ing the sweep­ing kinds of voter-re­stric­tions and voter-sup­pres­sion tac­tics that are be­com­ing de­press­ingly com­mon.

An ex­pli­cit con­sti­tu­tion­al right to vote would give trac­tion to in­di­vidu­al Amer­ic­ans who are fa­cing these tac­tics, and to leg­al cases chal­len­ging re­strict­ive laws. The courts have up to now said that the con­cern about voter fraud — largely man­u­fac­tured and ex­ag­ger­ated — provides an open­ing for severe re­stric­tions on vot­ing by many groups of Amer­ic­ans. That bal­ance would have to shift in the face of an ex­pli­cit right to vote. Fi­nally, a ma­jor na­tion­al de­bate on this is­sue would alert and edu­cate voters to the twin real­it­ies: There is no right to vote in the Con­sti­tu­tion, and many polit­ic­al act­ors are try­ing to take away what should be that right from many mil­lions of Amer­ic­ans.

Reps. Mark Po­can, D-Wis., and Keith El­lis­on, D-Minn., have in­tro­duced in Con­gress a con­sti­tu­tion­al amend­ment that would guar­an­tee the right to vote. It has garnered little at­ten­tion and no mo­mentum. Now is the time to change that dy­nam­ic be­fore more states de­cide to be Putinesque with our demo­cracy.

{{ BIZOBJ (video: 4522) }}

What We're Following See More »
Trade Bill Would Ban Imports Made with Slave Labor
28 minutes ago

“A bill headed for President Barack Obama this week includes a provision that would ban U.S. imports of fish caught by slaves in Southeast Asia, gold mined by children in Africa and garments sewn by abused women in Bangladesh, closing a loophole in an 85-year-old tariff law.” The Senate approved the bill, which would also ban Internet taxes and overhaul trade laws, by a vote of 75-20. It now goes to President Obama.

Sanders Closes to Within Seven Nationally in New Poll
41 minutes ago

Bernie Sanders has closed to within seven points of Hillary Clinton in a new Morning Consult survey. Clinton leads 46%-39%. Consistent with the New Hampshire voting results, Clinton does best with retirees, while Sanders leads by 20 percentage points among those under 30. On the Republican side, Donald Trump is far ahead with 44% support. Trailing by a huge margin are Ted Cruz (17%), Ben Carson (10%) and Marco Rubio (10%).

Sanders and Clinton Spar Over … President Obama
12 hours ago

President Obama became a surprise topic of contention toward the end of the Democratic debate, as Hillary Clinton reminded viewers that Sanders had challenged the progressive bona fides of President Obama in 2011 and suggested that someone might challenge him from the left. “The kind of criticism that we’ve heard from Senator Sanders about our president I expect from Republicans, I do not expect from someone running for the Democratic nomination to succeed President Obama,” she said. “Madame Secretary, that is a low blow,” replied Sanders, before getting in another dig during his closing statement: “One of us ran against Barack Obama. I was not that candidate.”

THE 1%
Sanders’s Appeals to Minorities Still Filtered Through Wall Street Talk
13 hours ago

It’s all about the 1% and Wall Street versus everyone else for Bernie Sanders—even when he’s talking about race relations. Like Hillary Clinton, he needs to appeal to African-American and Hispanic voters in coming states, but he insists on doing so through his lens of class warfare. When he got a question from the moderators about the plight of black America, he noted that during the great recession, African Americans “lost half their wealth,” and “instead of tax breaks for billionaires,” a Sanders presidency would deliver jobs for kids. On the very next question, he downplayed the role of race in inequality, saying, “It’s a racial issue, but it’s also a general economic issue.”

Clinton Already Pivoting Her Messaging
14 hours ago

It’s been said in just about every news story since New Hampshire: the primaries are headed to states where Hillary Clinton will do well among minority voters. Leaving nothing to chance, she underscored that point in her opening statement in the Milwaukee debate tonight, saying more needs to be done to help “African Americans who face discrimination in the job market” and immigrant families. She also made an explicit reference to “equal pay for women’s work.” Those boxes she’s checking are no coincidence: if she wins women, blacks and Hispanics, she wins the nomination.